Thursday, 14 January 2010

Avoiding Libel


The threat of a libel action haunts some writers - it featured as a plot device in Andrew Garve's The Megstone Plot, a lively thriller of the Fifties, and there may be other examples. A claim of libel can be very damaging, not only because of the risk of having to pay out compensation, but also because a book that contains libellous material may have to be withdrawn, at great cost. Yet, because of the – sometimes unsatisfactory - way in which the libel laws work, there are various traps for the unwary.

Even very sensible people can become ensnared by libel law. Michael Gilbert, an eminent solicitor, ruefully told of how a short story he wrote landed him, and the magazine which published it, in trouble. I read about this mishap and once asked him about it, but it was plain that the memory was still painful. One of the main pitfalls is that it is possible to libel a person unintentionally (for instance, where there is a coincidental overlap between what you write and something or someone in real life) whereas most legal wrongs can only be committed if you are proved to have the intention to commit them.

The newspapers often campaign for a relaxation of the laws of libel. This is said to be in the public interest, although of course there is a degree of self-interest there, too. A complex society such as ours does need laws to protect the reputations of people, which can so easily be destroyed, causing much distress and without any justification. Yet a balance needs to be struck, because there is a genuine public interest in free speech. All of us (except for libel lawyers) would benefit from a simplification of the libel laws, and a method of dealing with alleged defamation that was easy and cheap to operate. Easier to wish for than to achieve, I appreciate.

I know some writers who say they aren’t bothered about libel, and merrily depict real people in their fictions. Not a course I would recommend. In my own case, I do make a serious effort to ensure that, even though I’m using the real settings of Liverpool and the Lake District, my characters, and the incidents in the story, are invented. I certainly would hate to hurt anyone’s feelings, even by mistake. It was very different with Dancing for the Hangman, the only book in which I’ve used real people for a story. But there, not only Crippen, but all the other actors in the drama were long dead.

9 comments:

OneLifeLiveIt said...

Add Rafa Benitez to your crime list, it is criminal that he should be allowed to continue.

Deb said...

I understand the libel laws in England are (or were) more onerous than the ones in the United States. Someone with more knowledge of British libel law will correct me if I'm wrong, but apparently just using a name that was the same or similar to a living person could be grounds for libel. Just as we have "ambulance chasing" lawyers today who are always looking for a big payout for clients who have been in minor fender-bender car accidents, so in the past there were "libel chasing" lawyers who would actually go through the phone book looking for people with the same names as characters in books; they would then call the people and say, "Do you know you've been libelled in Michael Gilbert's book?"

It was for that reason that Graham Greene always gave his characters names like "Jones" and "Smith"--names that were so commonplace, the likelihood of anyone being able to say "He means me" were limited. On the other hand, some writers went in the opposite direction and gave their characters names like Lord Widmerpool and Hermione Roddice in the hopes that there would be no person in England with that name who could sue for libel.

Much as American filmmakers in the 1940s and 50s had to find clever ways to circumvent the production code, so I'm sure England writers have had to be very inventive with how they present their characters to avoid the libel laws--this might be one of the reasons that (to my mind, at least) English mysteries always seem richer and more satisfyingly convoluted than mysteries from other countries.

Margot Kinberg said...

Martin - Thanks for this very thoughtful and important post. For those of us who write crime fiction, it's so important to keep this sort of thing in mind. That's why, like you, I do not depict real people, and the setting for my Joel Wiliams novels is a fictitious town. I don't even use the real names of shops or restaurants when I write. Why take the risk?

Martin Edwards said...

Deb, there is a great deal in what you say. I tend to be in the 'Widmerpool' camp when it comes to naming people but of course, if you accidentally use a name that is improbable but belongs to a real life person, it can be rather messy!

Martin Edwards said...

Hi Margot - there is a lot to be said for avoiding risk. The risk may be small, but if you are unlucky, a libel case can be very expensive. (Though I do think that, equally, there are real risks attached to sueing for libel - we have had several UK politicians who lived to regret bringing libel claims.)

Dorte H said...

Interesting post, and interesting comments!

I have hardly ever heard about problems with libel in Danish fiction so our laws within this area are probably not very strict. I have never ever considered it when I wrote a manuscript. So the reason why I steer clear of well-known names is only that I like fiction, not crime stories built on real events.

Uriah Robinson said...

The American academic Professor Deborah Lipstadt has some interesting views on English libel laws, which she recounts in her book History on Trial. This book tells the complete story of what happened when she was sued for libel by David Irving.

Ann Elle Altman said...

Yeah, this is a very touchy subject for many. I try to make sure I write nothing that could in any way resemble anyone I know and because I don't write under my real name, it helps.

ann

Phyllis said...

I am always gobsmacked by the chutzpah of Rebecca Tope, whose enjoyable Thea Osborne mysteries are all set in real towns and villages (some of them very small) in the Cotswolds. Since most of their (fictional) residents occupy that end of the spectrum which ranges from the mean-spirited to the psychotic, I can only assume that she is very, very careful indeed when choosing their names!